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Break or Bend in Case of Emergency?: Rule of Law and State of Emergency in European Public Health Administration

Published online by Cambridge University Press:  14 January 2020

Filipe Brito BASTOS  and
Anniek DE RUIJTER Open the ORCID record for Anniek DE RUIJTER [Opens in a new window]
Filipe Brito BASTOS
Affiliation:
Postdoctoral researcher at the Amsterdam Centre for European Law and Governance, Amsterdam Law School, University of Amsterdam, email: [email protected].
Anniek DE RUIJTER
Affiliation:
Associate Professor at the Amsterdam Centre for European Law and Governance, Amsterdam Law School, University of Amsterdam, email: [email protected].
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Abstract

In this article, we ask what the impact is of the role of the EU administration in responding to emergencies in terms of (changes to) the rule of law. A response to an emergency in some cases creates exceptions to rule of law guarantees that bind the authorities to procedural rules and fundamental rights. These exceptions can become more permanent and even change the constitutional order of the EU. We articulate the legal framework for health emergencies, and discuss how the EU court has interpreted and developed this framework in two key decisions. We then ask whether this framework offers adequate safeguards for upholding the rule of law in cases of major health emergencies. We conclude that public health emergencies can bend and even break rule of law requirements for the EU administration, and advocate for more legal guidance on proportionality, which may offer better safeguards suited for protecting the rights of affected parties.

Type
Symposium on European Union Governance of Health Crisis and Disaster Management
Information
European Journal of Risk Regulation , Volume 10 , Issue 4: Symposium on European Union Governance of Health Crisis and Disaster Management , December 2019 , pp. 610 - 634
Copyright
© Cambridge University Press 2020

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Footnotes

†

We want to thank our colleagues and the reviewers for their invaluable comments on this article. We also thank Mark de Wilde and the colleagues participating in the Amsterdam emergency “book club” for the interesting discussions on constitutional emergency theory.

References

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2 The first legislative instruments on the common agricultural policy provided for urgent measures in case of abrupt shifts in market prices. See for instance Art 22 of Regulation 19/62, on the progressive establishment of a common market in cereals.

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48 Art 20 of Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency.

49 Art 20(3) Regulation (EC) No 726/2004.

50 Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (SSM Framework Regulation).

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64 Council Directive 92/59/EEC of 29 June 1992 on general product safety. The Directive was replaced by Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety, which is still in force.

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77 Commission Proposal, “Commission Proposal for a Decision of the European Parliament and of the Council on Serious Cross-Border Threats to Health Brussels (COM (2011)866 Final)”.

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79 ibid, at para 9.

80 Art 18 Health Threats Decision; ibid, 30. However, Art 5(4) of Regulation (EU) No 182/2011, particularly where it concerns issue of human health, limits the power of the Commission where the Committee on Serious Cross-Border Threats has not delivered an opinion.

81 Art 12 Health Threats Decision, para 31, and see Art 8 Regulation (EU) No 182/2011.

82 Art 11 Health Threats Decision.

83 Art 2(4) Health Threats Decision.

84 Art 12(1)(a) Health Threats Decision.

85 Art 12(1)(b)(i) Health Threats Decision.

86 Art 12(1)(b)(ii) Health Threats Decision.

87 Art 13 Health Threats Decision.

88 Art 2 of Regulation (EC) No 507/2006; Art 21 of Regulation (EC) No 1234/2008.

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95 ibid, Recital 21.

96 ibid, Recital 22.

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106 Dokter, supra, note 59, para 71.

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108 Joined Cases C-58/10 to C-68/10, Monsanto, EU:C:2011:553, para 77.

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